Opinion
No. COA03-363
Filed 21 October 2003 This case not for publication
Appeal by defendant from judgment entered 16 January 2003 by Judge Kimberly S. Taylor in Superior Court in Rowan County. Heard in the Court of Appeals 6 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General Roberta Ouellette, for the State. Carol Ann Bauer, for defendant-appellant.
Rowan County No. 01 CRS 59519.
On 28 May 2002, defendant pled guilty to larceny by an employee. In accordance with the plea agreement, the court sentenced defendant to a term of eleven to fourteen months imprisonment, suspended, subject to forty-eight months of supervised probation. As a condition of probation, defendant was placed on electronic house arrest (EHA) with monitoring for ninety days.
On 26 August 2002, defendant's probation officer, Tom Anderson, filed a probation violation report, alleging that defendant had failed to comply with the terms of her house arrest. Specifically, the report alleged that defendant had left early and failed to return home on several dates, and that she had also broken curfew, and shown "a blatant disregard for the rules of EHA." The defendant was arrested the same day and then released on 29 August 2002. On 4 September 2002, officer Anderson filed a second probation violation report. This time, he alleged that following her release from jail, defendant had failed to contact her probation officer, failed to report to her probation officer on several dates, and that her whereabouts were unknown. Defendant was arrested the next day.
On 16 January 2003, superior court held a probation violation hearing. The trial court found that defendant had willfully violated the terms of her probation as alleged in the 4 September 2002 violation report and revoked her probation. Defendant appeals.
Defendant's sole argument on appeal is that the trial court failed to make any finding addressing her evidence that she had a lawful excuse for her probation violations. Defendant cites her testimony, as well as that of Alice Tillman, that defendant had to leave home early and sometimes returned home late because she was at the mercy of her "ride" and the bus system to get to work at her two jobs and to Rowan-Cabarrus Community College, where she was a full-time student. Ms. Tillman gave defendant rides to her job at the Salisbury Post. Defendant also testified that she broke curfew because she had to work mandatory overtime on her second job at J.C. Penney and could not contact her probation officer from work. Defendant further testified that she left home without permission twice to pick up her nine-year-old daughter from school. Finally, defendant testified that she did not contact her probation officer following her release from jail because she had an appointment to see him the following week, and she intended to go to the appointment. Defendant contends that the trial court should have made detailed findings of fact to justify the revocation of her probation.
After careful review of the record, brief and contentions of the parties, we find no error. The dispositive issue on appeal is whether defendant violated a condition of her probation without lawful excuse.
Any violation of a valid condition of probation is sufficient to revoke defendant's probation. All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse. The burden is on defendant to present competent evidence of his inability to comply with the conditions of probation; and that otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was wilful or without lawful excuse. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted).
Here, the trial court did not base its revocation on any of the allegations in the 26 August 2002 report regarding the various dates she left home early or returned late while on EHA. Instead, the trial court based its revocation solely on the allegations in the 4 September 2002 report, namely, that following her release from jail, defendant did not contact her probation officer or report to him as required. Officer Anderson testified that he instructed all offenders to contact him upon their release from jail. Defendant admitted that she did not contact her probation officer or report to him following her release. The only reason defendant gave for not contacting him upon her release was that she had an appointment with him for the following week, and intended to keep the appointment. Defendant did not testify to any reason why she could not have contacted or reported to her probation officer upon her release as he instructed. Thus, defendant failed to present any competent evidence of her inability to comply with probation. Accordingly, the evidence was sufficient to justify the trial court's finding that her failure to comply was wilful or without lawful excuse.
Affirmed.
Judges McGEE and GEER concur.
Report per Rule 30(e).